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Because a sentencing judge could not fully explore the facts underlying a defendant’s prior conviction, the judge has refused a government request for a longer sentence. Prosecutors sought the longer sentence for a defendant who pleaded guilty to illegal reentry into the United States after deportation. A Southern District judge said she was prevented from making a searching inquiry for purposes of sentencing into the man’s 1991 drug conviction in California. Judge Shira Scheindlin said the government was asking her to “review unreviewable documents and make inferences based on allegations contained in those documents, without any admission by the defendant or a jury verdict” in the case of United States v. Norman Harrison, 03 CR 875. Mr. Harrison was charged in 1991 after an airport search of his duffel bag uncovered a gift-wrapped package containing 20 pounds of marijuana. Ultimately, a charge of possession of marijuana for sale was dismissed, and Mr. Harrison pleaded guilty to a related section of the California Health and Safety Code. In 2003, Mr. Harrison pleaded guilty to illegal reentry. Without enhancement, that would bring a sentence of 10 to 16 months under the guidelines. The government argued that his sentence under federal sentencing guidelines should be enhanced 12 levels because his prior conviction was a “drug trafficking offense” under USSG �2L1.2(b)(1)(B). That would have exposed him to a total of 30 to 37 months in prison. Alternately, the government said, his base level should be increased eight levels because the crime was an “aggravated felony” under USSG �2L1(b)(1)(C), which would have earned him between 18 months and 24 months in prison. The problem before Judge Scheindlin was that it was not clear what facts Mr. Harrison had pleaded guilty to and, therefore, what part of the statute was involved. In dealing with this problem, Judge Scheindlin said, courts have been constrained by the U.S. Supreme Court’s decision in Taylor v. United States, 495 U.S. 757 (1900), which rejected “an examination of extrinsic evidence to determine the nature of the underlying conviction,” out of concern that sentencing courts would get bogged down in an “elaborate factfinding process.” And the U.S. Court of Appeals for the Second Circuit, in United States v. Amaya-Benitez, 69 F.3d 1243 (1995), said that “where the defendant is convicted [at trial] under a multifaceted statute that in some cases constitutes an aggravated felony and in other cases does not, the district court may look to the indictment and jury charge to ascertain whether the defendant’s conviction encompassed the elements of an aggravated felony. “But once the district court has made that determination, it may look no further.” In cases involving plea agreements, Judge Scheindlin said, the Second Circuit has permitted the sentencing court to examine plea minutes and pre-sentencing reports because they contain admissions by the defendant of facts underlying the conviction. In the case of Mr. Harrison, she said, the criminal information to which he pleaded guilty provides no guidance on the 1991 conviction, there was no pre-sentencing report and the government has been unable to locate a transcript of his guilty plea. As a substitute, the government asked Judge Scheindlin to examine three other documents � minutes of Mr. Harrison’s 1992 deportation proceedings, a preconviction probation officer’s report, and a transcript of a preliminary hearing in 1991. “The documents that the government urges the court to consider,” Judge Scheindlin said, are all documents “in which someone other than the defendant or a jury describes conduct the defendant is accused of committing.” “To accept the government’s efforts to further expand the scope of documents upon which the district court relies would be to embark on the quintessential slippery slope: ultimately, the additions and exceptions permitted by the district and circuit courts would eviscerate Taylor‘s holding,” she said. In Mr. Harrison’s case, she said, the Possession of Marijuana for Sale charge was dismissed, making it logical that Mr. Harrison had pleaded guilty to transporting marijuana, which was not a drug trafficking offense under the guidelines. And because the government had not shown by a preponderance of the evidence that his conviction is a felony under the Controlled Substances Act, his prior conviction does not constitute an “aggravated felony” under the guidelines. “In sum, because there is no instructive extrinsic evidence that this Court may consider, I am bound by the limits of the statute of which the defendant was convicted,” she said. Judge Scheindlin decided that Mr. Harrison should receive 16 months in prison. Lawrence Donovan of Donovan & Valicenci of Bronxville represented Mr. Harrison Assistant U.S. Attorney Tanya F. Miller represented the government.

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